//  4/7/17  //  Commentary

At the end of March, a group of conservative activists sent Attorney General Jeff Sessions an unsolicited letter with some detailed suggestions about how to “fix” the Civil Rights Division of the Department of Justice. (The letter’s crucial premise is that the Division is badly broken because it fails adequately to prosecute a supposed avalanche of voter fraud.)  This letter doesn’t say anything that critics of Sessions had not foreseen. But it does align with many worst-case predictions about what Sessions (and his lieutenants) will do to DOJ’s Civil Rights Division.

In short, not only do Trump and Sessions’ more vocal supporters hope that this administration will stop using the Civil Rights Division to shield people of color from discrimination, but they also hope to use the Civil Rights Division as a sword to subject vulnerable minorities to still more discrimination.  Their letter thus awkwardly fuses two opposition narratives to anti-discrimination law—the idea of a “post-racial world” and the ugly undertones of white racial resentment.  These two ideas are (obviously) in tension, and the letter to Sessions underscores the toxicity of that combination.

Blunting the Civil Rights Division As A Shield From Discrimination

The letter asks DOJ, in so many words, to stop enforcing federal civil rights statutes that prohibit states from enacting voting laws that disproportionately burden minority voters.  It criticizes the Civil Rights Division for “jettison[ing] precepts like equal enforcement in favor of political and racialized dogmas” (emphases ours).  It also faults DOJ for bringing “racially-focused redistricting case[s],” which “can drag [on] almost a decade,” and for focusing “on voting rights victims.”

The letter then clumsily attempts to “all lives matter” the Civil Rights Division.  For example, it insists that “the American people deserve a Division that seeks to represent and protect all citizens” (emphasis ours). It argues that the Division “bullied employees from daring to enforce the law in a colorblind fashion.” And it urges the Division to “[r]eturn to race-neutral Voting Rights Act enforcement.” 

The letter spins a tale that none of the major voting rights issues in America today have anything to do with race. The massive racial disparities that recent state laws have produced are merely a fluke.  So too are the many recent racial gerrymanders. If liberals just stopped fixating on race—which legislators would never dare think about, even as a proxy for partisan affiliation—then we could all just get on with our post-racial utopia.  At the very least, if we’re going to enforce laws that protect voters, we must be sure to account for the tidal wave of recent statutes that have targeted white voters, and made it particularly hard for them to vote and stripped them of effective political power.  Right???

Aside from blinking reality, the letter asks the Civil Rights Division to ignore the law.  Section 2 of the Voting Rights Act (VRA) forbids states from relying on voting standards, practices, or procedures that “result[] in a denial or abridgment of the right of any citizen … to vote on account of race or color.” To be sure, section 2 also forbids states from using measures that were enacted for the purpose of discriminating on the basis of race. But the portion of section 2 that we have quoted above forbids some measures that were not enacted for purpose of discriminating—namely, those measures that result in discriminatory effects.  Under the plain text of federal law, disparate racial impacts matter.

The Trump administration would not be the first to decline to enforce section 2 in cases where a measure was not enacted with a discriminatory purpose. The Bush administration, for instance, also elected not enforce this VRA provision where a state measure had a discriminatory effect but was not (in the Department’s view) motivated by any discriminatory intent.

But there is an added wrinkle if the Trump administration takes the same course.  Until recently, several of the most troublesome jurisdictions were subject to section 5 of the VRA.  And section 5 required those jurisdictions to “preclear” any changes to their voting laws.  Thus, while the Bush administration did not use section 2 to challenge voting laws after they were enacted, the protections of section 5 provided a meaningful limit to some States’ ability to enact restrictive voting measures.

That is no longer the case.  In Shelby County v. Holder (2013), a bare majority of the Supreme Court held unconstitutional the VRA provision that determined which states are subject to section 5—effectively bringing an end to the preclearance regime.  Section 5 thus no longer serves as a backstop to protect voters from even horrifically discriminatory voting measures.  Needless to say, states that are keen to pass restrictive voting laws have gone on a bender since Shelby County was decided.

One of us has written at length about just how wrong Shelby County was.  Along these lines, it is illuminating to compare the reasoning in Shelby County with the reasoning in the letter to Sessions.  So let’s play a little game. We’ll call the game “Who said it: Conservative Activists or the Chief Justice?”

  1. “[L]ongstanding conventions held from the mid-20th century [have] prove[n] outmoded …. with particular respect to voting.”
  2. “There is no denying … that the conditions that originally justified [mid-20th century] measures no longer characterize voting.”
  3. “Discrimination, dilution, and poor processes will always be constants, yet the victims can vary in our contemporary era.” 
  4. “[V]oting discrimination still exists; no one doubts that …. [But] [n]early 50 years later, things have changed dramatically.”
  5. “The mosaic image of America is growing richer in color and detail as each decade passes.”
  6. “Our country has changed.”
  7. “[T]he law … recognizes the dangers of an oppressive federal government outside the bounds of the law when it comes to our elections.”
  8. “[T]he Constitution intended the States to keep for themselves … the power to regulate elections.”


  • Statement #1: The letter to Sessions
  • Statement #2: The Chief Justice
  • Statement #3: The letter to Sessions
  • Statement #4: The Chief Justice
  • Statement #5: The letter to Sessions
  • Statement #6: The Chief Justice
  • Statement #7: The letter to Sessions
  • Statement #8: The Chief Justice

The letter to DOJ and Shelby County sound a similar theme: that we now live in a world beyond race, where the true danger comes from a tyrannical federal government that injects racial dissonance into an otherwise harmonious society.

This is, quite simply, poppycock. As many courts recently have found, more than a few state legislatures have actively engaged in an unmistakably racialized project of voter disenfranchisement since Shelby County was handed down.  And, of course, race remains integral to the fabric of American life in a million ways, some of them glaring and others near invisible.  Calls for a general federal disarmament must thus be understood as a willingness—perhaps in some instances even an eagerness—to throw vulnerable racial minorities under the bus in our democratic process.      

Whether justified by the rhetoric and unsubtle dog-whistling of racial resentment (one of the main themes in Trump’s campaign), or by a reality-defying insistence that racial strife would not exist but for federal anti-discrimination enforcement, or by some combustible combination of the two, the bottom line is that the letter sent to Sessions calls for DOJ to abdicate one of its most important roles.

Using the Civil Rights Division As A Sword For Discrimination

Equally disturbing is the letter’s call to affirmatively use DOJ’s Civil Rights Division as a sword for discrimination—that is, to use the department to aggressively inflict discrimination on historically disadvantaged groups, including people of color.

The letter asks DOJ to, among other things:

(1) “Put an end to politically driven pursuits against state photo voter identification requirements, citizenship verification in voter registration, and common-sense adjustments to early voting periods.”

(2) “[E]nforc[e] Section 8 of the National Voter Registration Act requiring that voter rolls meet federal maintenance standards.”

The first set of suggestions asks nothing less of DOJ than to allow states to disenfranchise citizens by making it harder to vote in order to protect against a non-existent threat. Presumably, the first suggestion also encompasses a request that DOJ file briefs in courts throughout the nation urging courts to deny claims brought against state laws that discriminate in their effects (and to take an extraordinarily narrow view of what it means for a state law to reflect purposeful discrimination).

The second suggestion then goes even further, asking DOJ to do the disenfranchising itself, by removing registered voters from the registration roll.

No wonder the letter refers to the Civil Rights Division as the “crown jewel” of the Department—the letter’s authors see the Division as an opportunity to do nationwide what they have, thus far, only been able to do in a handful of states.

And that’s terrifying.

Versus Trump: Going to Church In Times of COVID

12/7/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the recent Supreme Court decisions requiring states to allow in-person religious services even while other gatherings can be banned. The pair gently disagree about how hard or easy these cases are. Listen now!

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

Versus Trump: Legal Update + The GSA Travesty

11/17/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the status of Trump's legal challenges to the election (going nowhere) and the Trump Administration's dangerous and illegal refusal to designate Biden as the President-elect and therefore give his team resources for a smooth transition. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Trump's Lawyers Should Be Sanctioned

11/11/20  //  Commentary

Lawyers who bring cases without evidence solely to harass or delay should be sanctioned. It's what Justice Scalia would have wanted.

Jason Harrow

Gerstein Harrow LLP